In the Interest of L.J.L. v. the State of Texas

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00286-CV
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IN THE INTEREST OF L.J.L.
__________________________________________________________________
On Appeal from the 317th District Court
Jefferson County, Texas
Trial Cause No. F-213,651-E
__________________________________________________________________
MEMORANDUM OPINION
This is an appeal of a SAPCR (“Suit Affecting Parent-Child Relationship”).
After a bench trial, Mother appeals a modification order entered by the trial court
concerning her daughter, L.J.L.1 The modification order granted Father the exclusive
right to designate L.J.L.’s primary residence. In two issues, Mother complains the
trial court abused its discretion by modifying custody because there was insufficient
evidence supporting the trial court’s implied findings that a material change of
circumstances had occurred and that the modification was in L.J.L.’s best interest.
1To protect the privacy of the parties, we use the child’s initials and refer to
certain other individuals by their relationship to the child. See Tex. Fam. Code Ann.
§ 109.002(d).
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As discussed herein, we affirm the trial court’s Order in Suit to Modify Parent-Child
Relationship.
BACKGROUND
Mother filed a Petition to Modify Parent-Child Relationship seeking to
modify the 2012 Order Establishing Parent-Child Relationship (“2012 Order”).
Mother alleged that the circumstances of the child, a conservator, or other party
affected by the 2012 Order had materially and substantially changed since the date
of rendition and that modification was in L.J.L.’s best interest. Mother requested that
Father’s access and possession be restricted to supervised possession. Father filed
an Original Answer denying Mother’s allegations the same day the trial court signed
an Order in Suit to Modify Parent-Child Relationship finding that Father failed to
appear and wholly made default. Father filed a Motion for New Trial and to Set
Aside Default Judgment, in which he argued that Mother failed to properly serve
him and that he had a meritorious defense because L.J.L. had made an outcry
claiming sexual abuse had occurred at Mother’s home. Father alleged that L.J.L. had
been interviewed at the Houston Children’s Assessment Center, and based on the
interview, Child Protective Services (“CPS”) had created a safety plan and did not
want L.J.L. returned to Mother’s home until they completed the investigation. Father
included his Affidavit, in which he averred that sending L.J.L. back to Mother’s
home would jeopardize L.J.L.’s mental, physical, and emotional health because
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L.J.L. had reported that her sister (“Sister”) was sexually abusing her. The trial court
set aside the default judgment and granted Father a new trial.
Father filed a Counterpetition to Modify Parent-Child Relationship alleging
that the circumstances of the child, a conservator, or other party affected by the 2012
Order had materially and substantially changed since the date of rendition and
requesting that he be appointed as the person who has the right to designate the
child’s primary residence. Father alleged that Mother had a history or pattern of
family violence and child neglect, CPS found that physical and sexual abuse may
have occurred in Mother’s home, and that a safety plan required him to keep L.J.L.
Father requested that the trial court limit Mother’s access and possession to
supervised visitation or to unsupervised daytime visits outside Mother’s home and
pleaded that such modification was in L.J.L.’s best interest. Father attached his
Affidavit, in which he averred that L.J.L. had alleged that Sister sexually abused her
at Mother’s home, and Mother had slapped and threatened to choke L.J.L. At
Father’s request, the trial court appointed a Guardian Ad Litem for L.J.L.
The trial court conducted a bench trial. Mother testified that she was L.J.L.’s
primary conservator, who was nine years old, and that L.J.L. had thrived under her
care. When the trial occurred, Mother lived in Houston, and she explained that L.J.L.
would be attending fifth grade in Alief Independent School District. Mother testified
that she has three children, and she currently resides in her home with L.J.L. and her
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son, who is twelve. Mother told the trial court that L.J.L., while living with Mother,
had made allegations of sexual abuse against Mother’s fourteen-year-old daughter,
Sister, who had been living with an aunt for over a year. Mother explained that under
the court’s orders, Sister could not be around L.J.L. unsupervised, and she had
complied with that order. Mother testified that L.J.L. outcried to Father, and Mother
suspected that Father had coerced L.J.L. to make the outcry.
Mother also told the trial court why she filed a suit to modify the trial court’s
2012 Order. According to Mother, she wanted the order modified because she
wanted the trial court to reduce Father’s visitation with L.J.L. Father responded to
the suit, by accusing Mother of abusing and neglecting L.J.L. and keeping her in an
unsafe environment. Mother denied all of Father’s allegations and explained that
CPS never found she had abused L.J.L., nor had CPS removed L.J.L. from Mother’s
care. Mother explained that pending the results of the current investigation, CPS had
issued a safety plan to Father, and Father was supposed to return L.J.L. to her. Father
had, however, failed to do so and kept L.J.L. for six months. Mother testified that
she kept sister and L.J.L. separated, cooperated with the investigation, allowed CPS
to visit her home, and that CPS had ruled out the allegations against her. Mother also
testified that neither she, nor Sister were charged with any criminal activity, and
L.J.L. had not made any further outcries. Mother explained that if the court allowed
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her to maintain custody of L.J.L., she would continue to abide by the court’s
requirements regarding arrangements for Sister and L.J.L.
Mother testified that while in her care, L.J.L. attended school virtually the past
school year, because Mother was concerned about COVID, and she understood that
was one of Father’s concerns. Mother explained that she had enrolled L.J.L. in
school for the upcoming school year and that there were no issues with L.J.L. moving
to the fifth grade. Mother also explained that the previous summer both she and
Father submitted to drug testing, and she tested positive for marijuana. Mother
testified that while on vacation without L.J.L., Mother said she tried THC candy,
which she legally purchased in California, and she claimed she did not regularly use
marijuana. Mother further testified that she believed drug use was not a concern
because the Department of Family and Protective Services (“the Department”) had
not requested drug testing in over a year.
Mother believed it was in L.J.L.’s best interest for her to remain the primary
conservator with the exclusive right to designate L.J.L.’s primary residence and for
Father to have supervised possession and access because of his negative influence.
Mother was aware that L.J.L. had informed the Guardian Ad Litem that she preferred
to live with Father, but she felt Father had influenced that decision. Mother denied
telling L.J.L. not to discuss what occurred in Mother’s home, and she explained that
CPS found her home was appropriate. Mother testified it would be detrimental to
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uproot L.J.L. from her Houston home, school, and friends. She also admitted that
Father did not approve of her moving to Houston, but the 2012 Order did not include
a geographical restriction. Mother explained that due to her work schedule, L.J.L.
walked to and from school with her siblings and other neighborhood friends, and
Mother added that a family member met L.J.L. when she got home. Mother also
testified that L.J.L. saw a counselor concerning her outcry of sexual abuse, but
Mother did not believe that Sister had sexually assaulted L.J.L. as L.J.L. had
claimed. Mother further testified that L.J.L. claimed that something occurred at
Father’s home and told her she did not want to stay there. Mother explained that she
was currently employed, had health insurance for her children, and had almost
completed her psychology degree online.
Father testified that he had lived in Beaumont for over twenty years with his
mother and stepfather. Father explained that L.J.L. has her own room and attends
Beaumont Independent School District. Father testified that he always wanted joint
custody of L.J.L. and to share 50% of the responsibilities and time, and he was
concerned that Mother spent L.J.L.’s child support on her other children, who did
not receive any child support. Father testified that after Mother moved to Houston,
L.J.L. was dirty and smelly 50% of the time he picked her up, and he would “wipe
her down right quick.” Father testified that he complained to Mother but “tried to
work things out” outside of court, and he explained he did not have money to hire
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an attorney. Father explained that he called CPS twice in 2013 or 2014 to complain
about L.J.L.’s condition when he picked her up, which also included her having bite
marks and scratches. CPS, however, had ruled out his complaints.
Father testified that when L.J.L. was three or four, he had just returned from
picking L.J.L. up from Mother when he found L.J.L. on top of his girlfriend’s child
“humping and kissing on him.” Father testified that when L.J.L. told him where she
learned it from, he believed that Sister might have been sexually inappropriate with
L.J.L. When he called Mother to discuss what he had seen, she told him “it was
denied on her end.” Father did not report the incident to CPS because he was “trying
to co-parent[]” and thought Mother would “eradicate whatever might have been
transpiring.” Father also testified he called CPS when L.J.L. was six, because she
told him that Mother had slapped her and threatened to choke her until she passed
out if she continued to ask to live with Father. Father also complained that Mother
had denied him access to L.J.L., but he admitted that he never filed any enforcement
actions against Mother.
Father testified that after L.J.L. outcried, he kept L.J.L. from Mother for
approximately six months without court authorization, because he was trying to
protect L.J.L., who begged him to keep her. Father also testified that after he tried to
talk to Mother about L.J.L.’s allegations of physical and sexual abuse, L.J.L. told
him that Mother whipped her and yelled. Father explained that he was seeking a
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modification because L.J.L. made an outcry. Father testified that after L.J.L. made
an outcry to her teacher at school, he took her to the Children’s Assessment Center.
Father explained that Mother did not believe that Sister assaulted L.J.L., that Mother
was more concerned about getting L.J.L. back than solving the problem, and that
Mother did not remove Sister from her home until the court ordered her to do so.
Father testified that he is currently employed, works four day shifts per week
and has flexibility as a supervisor. Father also explained that L.J.L. has family and
church support in Beaumont and is making “all A’s” in school. Father testified that
the CPS investigation was pending when Mother filed her motion to modify, and
that he filed his modification because he was concerned for L.J.L.’s safety. Father
explained that CPS had ruled out any allegations against him. Father believed that
appointing him as the primary conservator with the exclusive right to determine
L.J.L.’s primary residence was in L.J.L.’s best interest. Father did not request
supervised visitation with Mother, but he did request that the court order include
L.J.L. being separated from Sister when L.J.L. is with her Mother.
The trial court took judicial notice of all pleadings on file as well as the
Guardian Ad Litem’s report. The trial court also considered the findings of the CPS
investigation, which, among other findings, ruled out allegations of neglectful
supervision and physical abuse against Mother. That said, the CPS investigation
found “reason to believe” as to the allegations of sexual abuse against L.J.L.’s sister.
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After considering the evidence, the trial court signed an Order in Suit to Modify
Parent-Child Relationship, found the material allegations in Father’s Counterpetition
to Modify true and correct, and ruled that the requested modification would be in
L.J.L.’s best interest. The trial court appointed the parents as joint managing
conservators, granted Father the exclusive right to designate L.J.L.’s primary
residence, and ordered Mother to supervise L.J.L.’s contact with Sister. Mother
appealed.
ANALYSIS
In two issues, Mother complains the trial court abused its discretion by
modifying custody because there is insufficient evidence to support the trial court’s
implied findings of a material change of circumstances and to support the finding
that modifying the order is in L.J.L.’s best interest.
We review a trial court’s modification order under an abuse of discretion
standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court
abuses its discretion when it acts in an arbitrary or unreasonable manner or when it
acts without reference to any guiding principles. See In re A.E.M., No. 09-18-00288-
CV, 2020 WL 826715, at *9 (Tex. App.—Beaumont Feb. 20, 2020, no pet.) (mem.
op.). Under an abuse of discretion standard, the legal and factual sufficiency of the
evidence are not independent grounds of error but merely factors in assessing
whether the trial court abused its discretion. In re A.E.D., No. 09-13-00555-CV,
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2014 WL 4363445, at *3 (Tex. App.—Beaumont Sept. 4, 2014, pet. denied) (mem.
op.). “This standard has been distilled into a two-prong inquiry: (1) whether the trial
court had sufficient information upon which to exercise its discretion; and (2)
whether the trial court erred in its application of discretion.” In re M.A.M., 346
S.W.3d 10, 14 (Tex. App.—Dallas 2011, pet. denied) (citations omitted); see In re
E.R.A., No. 09-20-00042-CV, 2021 WL 1031142, at *4 (Tex. App.—Beaumont
2021, no pet.) (mem. op.) (citation omitted). “‘The traditional sufficiency review
comes into play with regard to the first question. With regard to the second question,
we determine, based on the elicited evidence, whether the trial court made a
reasonable decision.’” In re M.M.M., 307 S.W.3d 846, 849 (Tex. App.—Fort Worth
2010, no pet.) (quoting In re W.M., 172 S.W.3d 718, 725 (Tex. App.—Fort Worth
2005, no pet.)); see In re E.R.A., 2021 WL 1031142, at *4.
Since trial courts have wide discretion to determine the child’s best interest in
resolving issues of custody and visitation, “‘[t]he trial court does not abuse its
discretion if its order is supported by some evidence of a substantial and probative
character.’” In re B.C.C., No. 09-21-00001-CV, 2022 WL 17350920, at *9 (Tex.
App.—Beaumont Dec. 1, 2022, no pet.) (mem. op.) (quoting In re A.E.D., 2014 WL
4363445, at *3). We review the entire record in determining whether the trial court’s
decision was arbitrary or unreasonable. Id. (citation omitted). The trial court does
not abuse its discretion if it bases its decision on conflicting evidence, so long as
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some evidence supports its decision. Id. (citing In re H.M.W., No. 09-21-00047-CV,
2022 WL 710059, at *7 (Tex. App.—Beaumont Mar. 10, 2022, no pet.) (mem. op.)).
The factfinder “‘is the sole arbiter of the witnesses’ credibility and
demeanor,’” and our review must defer to the trial court’s factual determinations.
See In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021) (quoting In re J.O.A., 283
S.W.3d 336, 346 (Tex. 2009)). We assume the factfinder resolved disputed facts in
favor of its finding if a reasonable factfinder could do so, and we disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
not credible. Id. (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2022)). When, as in
this case, the trial court does not issue separate findings of fact, we presume the trial
court made all findings necessary to support its judgment. Worford v. Stamper, 801
S.W.2d 108, 109 (Tex. 1990).
A court that has continuing exclusive jurisdiction may modify an order that
provides for the conservatorship, support, or possession of and access to a child. Tex.
Fam. Code Ann. § 155.003(a). Section 156.101 of the Family Code sets out the
grounds for modifying a conservatorship order:
(a) The court may modify an order that provides for the appointment of a
conservator of a child, that provides the terms and conditions of
conservatorship, or that provides for the possession of or access to a
child if modification would be in the best interest of the child and:
(1) the circumstances of the child, a conservator, or other party affected
by the order have materially and substantially changed since the
earlier of:
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(A) the date of the rendition of the order, or
(B) The date of the signing of a mediated or collaborative law
settlement agreement on which the order is based[.]
Id. § 156.101(a)(1); In re A.E.M., 2020 WL 826715, at *10. “‘The change-in-
circumstances requirement is a threshold issue for the trial court and is based on a
policy of preventing constant re-litigation with respect to children.’” In re A.E.M.,
2020 WL 826715, at *10 (quoting Smith v. Karanja, 546 S.W.3d 734, 738 (Tex.
App.—Houston [1st Dist.] 2018, no pet.)) (other citation omitted). Unlike
termination of parental rights cases in which the statutory grounds for termination
must be established by clear and convincing evidence, the standard of proof for a
conservatorship decision is preponderance of the evidence. See In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007).
The child’s best interest is the trial court’s primary concern in determining
issues of conservatorship, possession, and access. Tex. Fam. Code Ann. § 153.002.
We assess the trial court’s best-interest finding by using the Holley factors. See
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The Holley factors include
(1) the child’s desires; (2) the child’s current and future physical and emotional
needs; (3) any physical or emotional danger to the child now or in the future; (4) the
parental abilities of the individuals seeking custody; (5) the programs available to
those individuals to promote the child’s best interest; (6) the plans for the child by
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these individuals; (7) the stability of the home; (8) acts or omissions by a parent
tending to show that the existing parent-child relationship is not a proper one; and
(9) any excuse for the parent’s acts or omissions. Id.The trial court heard conflicting evidence regarding the Holley factors with
respect to conservatorship, possession, and access. See id. After hearing all the
evidence and observing the witnesses, the trial court found that it was in L.J.L.’s best
interest that the parents remain as joint managing conservators and that Father have
the exclusive right to designate L.J.L.’s residence. Based on the evidence concerning
all relevant factors when the trial occurred, we conclude that some evidence of
substantive and probative character supports the trial court’s decision. See In re
B.C.C., 2022 WL 17350920, at *9. We further conclude that the trial court made a
reasonable decision considering the evidence presented. See In re E.R.A, 2021 WL
1031142, at *4; In re M.M.M., 307 S.W.3d at 849. Accordingly, we conclude that
the trial court did not abuse its discretion by modifying its order. See Gillespie, 644
S.W.2d at 451. We overrule Mother’s issues and affirm the trial court’s Order in Suit
to Modify Parent-Child Relationship.
AFFIRMED.
_________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on March 8, 2023
Opinion Delivered August 24, 2023
Before Golemon, C.J., Horton and Johnson, JJ.
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